- António Castanheira Neves
According to Castanheira Neves, law can only be understood through "legal problems" (roughly,
legal cases), which have to be solved within the legal system (including a necessary connection to morality). Law, he claims, is not something given or previous, but the solution to legal problems. Legal problems are the decisive starting point. His opposition to positivism, to natural lawand to the several theories of legal syllogismwould make him one of the first and most accomplished advocates of interpretivism.
Castanheira Neves, however, has always claimed that law — the task of lawyers — is not essentially interpretive or hermeneutical, but practical, "i.e.", action guiding. He maintains that legal interpretation is not a necessary feature of legal reasoning. On the contrary, law always arises from legal problems, which are concrete, historically situated, normative, and practical. Every legal decision aims to settle what someone (legally) "ought to do" in a particular case in a particular historical (and social) situation, and that is its defining feature. A legal decision is also itself an action. Interpretation is not always needed and, when it is, it is auxiliary.
The central tenets of Castanheira Neves' philosophy of law were made clear in his 1967 massive book on the philosophical and methodological distinction between matter of fact and matter of law. Castanheira Neves addresses the similarities and significant differences between his and Dworkin's theses in the last part of his 2003 book.
Castanheira Neves also claims that there is no law "in" general norms (rules, principles, etc.) as laid down by legislators, but only in solving particular cases. To this thesis, he calls "jurisprudentialism".
:Law is not an element, but a synthesis, not a premise for validity, but fulfilled validity, not a prius, but a posterius, not a given, but a solution, it is not in the beginning, but in the end. (Castanheira Neves, 1967, p. 586)
In this, he was preceded by authors like Viehweg and schools of thought like
critical legal studies, but he differed from these authors as he claimed it to be essential to law as a normative matter, and not only descriptively. His position is therefore equivalent, in this subject, to J. Dancy's later moral particularism. Castanheira Neves would come to agree with Gadamer's dictum that all interpretation is application (as Dworkin did).
*(1967) "Questão-de-facto — questão-de-direito ou o problema metodológico da juridicidade",
Coimbra: Almedina. "Matter of fact / matter of law, or the methodological problem of legality".
*(1983) "O instituto dos "assentos" e a função jurídica dos supremos tribunais", Coimbra: offprint of RLJ. "The institute of "
assentos" and the legal function of supreme courts", first published between 1973 and 1982.
*(1993) "Metodologia jurídica. Problemas fundamentais", Coimbra: Coimbra Editora, 1993. "Legal methodology / Fundamental problems".
*(1995) "Digesta: escritos acerca do direito, do pensamento jurídico, da sua metodologia e outros", 2 vols., Coimbra: Coimbra Editora. "Digesta" is a collection of works first published between 1968 and 1994, including::*(1976) "A revolução e o direito" ("Revolution and law"),:*(1979) "A unidade do sistema jurídico" ("The unity of the legal system"), and:*(1982) "Fontes do direito" ("Sources of the law").
*(2003) "O actual problema metodológico da interpretação jurídica", Coimbra: Coimbra Editora. "The present day methodological problem of legal interpretation".
Wikimedia Foundation. 2010.
Look at other dictionaries:
Neves (surname) — Neves (pronunciation: NEH vsh), is the Portuguese word for the plural form of snow (Portuguese: neve). It is a common surname in Portugal, Brazil, and the Spanish region of Galicia. Contents 1 People with this name 1.1 Sportspeople … Wikipedia
Liste des philosophes politiques et sociaux — La liste des philosophes politiques et sociaux est non exhaustive, et regroupe les philosophes ayant pratiqué la philosophie sociale et la philosophie politique. Principaux Confucius Aristote Platon Thomas Hobbes Nicolas Machiavel Gottfried… … Wikipédia en Français
List of Portuguese people — The following is a list of notable and historically significant people from Portugal.Navigators, explorers and pioneers15th century:Afonso Gonçalves Baldaia (15th century explorer of the African coast):Álvaro Caminha (15th century explorer of the … Wikipedia
Jurisprudence — For the jurisprudence of courts, see Case law. Philosophers of law ask what is law? and what should it be? Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists (including legal philosophers and social… … Wikipedia
Real Academia de Jurisprudencia y Legislación — Coordenadas: 40°25′3″N 3°41′44″W / 40.417489, 3.695502 Para la de Cataluña, véase … Wikipedia Español
List of University of Coimbra people — This is a list of notable alumni and students, from the University of Coimbra.AlumniNoted professors and lecturersNoted professors and lecturers at the University include:Nobel laureates*Egas Moniz, (1874 1955) Portuguese physician and… … Wikipedia
List of topics in social and political philosophy — * And theory of conservatism * A Conflict of Visions * A Few Words on Non Intervention * A Vindication of the Rights of Men * Accountability * Action theory * Actual Idealism * Adam Müller * Adamites * Agency (philosophy) * Aggravation of class… … Wikipedia
November 8 — For the Kris Kristofferson song, see 8th of November. << November 2011 >> Su Mo Tu We Th Fr Sa 1 … Wikipedia
Immanuel Kant — Kant redirects here. For other uses, see Kant (disambiguation). See also: Kant (surname) Immanuel Kant Immanuel Kant Full name Immanuel Kant Born 22 April 1724 … Wikipedia
Karl Marx — Marx redirects here. For other uses, see Marx (disambiguation). Karl Heinrich Marx Marx in 1875 Full name Karl Heinrich Marx Born 5 May 1818 Trier, Kingdom of Prussia … Wikipedia